2960 Tavern Inc. v. New York State Liquor Authority

29 A.D.3d 497, 814 N.Y.S.2d 871

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 2006
• Status: Published

Opinion

Determination by respondent, dated April 7, 2005, sustaining two charges of suffering or permitting gambling on the premises and imposing a $3,500 civil penalty, or, alternatively, a 25-day suspension and $1,000 bond claim, unanimously confirmed, the petition denied and this CPLR article 78 proceeding (transferred to this Court by order of the Supreme Court, New York County [Emily Jane Goodman, J.], entered July 7, 2005) dismissed, without costs.

The finding of gambling permitted on the licensed premises, in violation of Alcoholic Beverage Control Law § 106 (6), is supported by substantial evidence (see Matter of JAJK, Inc. v Division of Alcoholic Beverage Control, 272 AD2d 963 [2000]; Matter of Bubha Rest, v New York State Liq. Auth., 160 AD2d 539 [1990]). The record also supports respondent’s finding that the video game in question is a gambling device in violation of Rules of the State Liquor Authority (9 NYCRR) § 53.1 (t) (Matter of Plato’s Cave Corp. v State Liq. Auth., 68 NY2d 791 [1986]; Matter of Tom’s Log Cabin v New York State Liq. Auth., 214 AD2d 492 [1995]). The penalty imposed was not so disproportionate to the offenses as to be shocking to one’s sense of fairness (Matter of Rontim Rest. v New York State Liq. Auth., 206 AD2d 485 [1994]). Concur—Andrias, J.P., Marlow, Sullivan, Gonzalez and Sweeny, JJ.